33656 Federal Register / Vol. 70, No.
109 / Wednesday, June 8, 2005 / Rules and Regulations
DATES: Effective Date: June 8, 2005.
The Department of Labor’s final rule
implementing E.O. 13201 was published
on March 29, 2004, with an effective
date of April 28, 2004. This FAR rule is
the formal notification to contracting
officers to insert the E.O. 13201 clause
in covered solicitations issued on or
after the effective date of this rule.
FOR FURTHER INFORMATION CONTACT: The
FAR Secretariat at (202) 501–4755 for
information pertaining to status or
publication schedules. For clarification
of content, contact Ms. Kimberly A.
Marshall, Procurement Analyst, at (202)
219–0986. Please cite FAC 2005–04,
FAR case 2004–010.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends the Federal
Acquisition Regulation. DoD, GSA, and
NASA published an interim rule in the
Federal Register at 69 FR 76352,
December 20, 2004. The 60-day
comment period for the interim rule
ended February 18, 2005. The Councils
did not receive any public comments,
and, therefore, agree to finalize the
interim rule without change.
This is not a significant regulatory
action and, therefore, was not subject to
review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
B. Regulatory Flexibility Act
The Department of Defense, the
General Services Administration, and
the National Aeronautics and Space
Administration certify that this final
rule will not have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., because the
rule merely requires contractors to post
notices and to insert a clause in
subcontracts and purchase orders
requiring subcontractors and vendors to
post the notices also. The notices advise
the contractors’ and subcontractors’
nonunion member employees of their
rights under existing law concerning use
of their union dues or fees where a
union security agreement is in place.
The rule provides sanctions for
noncompliance, but full compliance
with the Executive Order and any
related rules, regulations and orders of
the Secretary of Labor is expected of all
contractors. Further, this rule is only
implementing the Department of Labor
(DOL) final rule. The Secretary of Labor
has certified to the Chief Counsel for
Advocacy at the Small Business
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Administration that the DOL final rule
will not substantially change existing
obligations for Federal contractors. The
Councils did not receive any comments
relating to the Regulatory Flexibility
Act. However, the Councils will
consider comments from small entities
concerning the affected FAR Parts 2, 22,
and 52 in accordance with 5 U.S.C. 610.
Interested parties must submit such
comments separately and should cite 5
U.S.C. 601, et seq. (FAC 2005–04, FAR
case 2004–010), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
apply; however, these changes to the
FAR do not impose additional
information collection requirements to
the paperwork burden previously
approved under OMB Control Number
1215–0203.
List of Subjects in 48 CFR Parts 2, 22,
52
Government procurement.
Dated: May 27, 2005.
Julia B. Wise,
Director, Contract Policy Division.
■ Interim Rule Adopted as Final Without
Change
■ Accordingly, the interim rule
amending 48 CFR parts 2, 22, and 52,
which was published at 69 FR 76352,
December 20, 2004, is adopted as a final
rule without change.
[FR Doc. 05–11180 Filed 6–7–05; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 7, 11, 13, and 15
[2005–04; FAR Case 2003–025; Item II]
RIN 9000–AK03
Federal Acquisition Regulation;
Telecommuting for Federal
Contractors
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed to convert the
interim rule published in the Federal
Register at 69 FR 59701, October 5,
PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\08JNR4.SGM
2004, to a final rule without change. The
final rule amends the Federal
Acquisition Regulation (FAR) to
implement section 1428 of the Services
Acquisition Reform Act of 2003, Title
XIV of Public Law 108–136,
Authorization of Telecommuting for
Federal Contractors.
DATES: Effective Date: June 8, 2005.
FOR FURTHER INFORMATION CONTACT: The
FAR Secretariat at (202) 501–4755 for
information pertaining to status or
publication schedules. For clarification
of content, contact Mr. Gerald Zaffos,
Procurement Analyst, at (202) 208–
6091. Please cite FAC 2005–04, FAR
case 2003–025.
SUPPLEMENTARY INFORMATION:
A. Background
An interim rule implementing Section
1428 of the Services Acquisition Reform
Act of 2003 (Title XIV of Public Law
108–136) was published in the Federal
Register on October 5, 2004 (69 FR
59701). Five comments were received
from four respondents in response to the
interim rule. While all of the
commenters were supportive of the rule,
the commenters offered the following
recommendations to maximize the use
of telecommuting for Federal
contractors. One commenter suggested
that the Councils provide an incentive
for ‘‘suppliers who take the initiative to
hire telecommuting contractors.’’ The
Councils did not adopt this suggestion
because the statute does not establish
incentives, and the Councils believe
establishing such an incentive is beyond
the scope and authority of the Councils.
Another commenter believes that the
rule does not go far enough because it
allows the contracting officer to
determine that allowing telecommuting
would be contrary to the agency’s
requirements. The commenter believes
that Government managers who are
uncomfortable with the concept of
telecommuting will convince
contracting officers to disallow
telecommuting more often than allow it.
To prevent this, the commenter
recommended that ‘‘telecommuting be
established as a ‘requirement’ for some
percentage of government contracts and
that telecommuting be defined as
working offsite for 25 or more hours a
week.’’ This commenter also
recommended that contracting officers
who award contracts to firms that allow
their employees to telecommute receive
additional training, funds, ‘‘and a leg up
on promotion.’’ The Councils did not
adopt this recommendation because
there is no evidence that contracting
officers will not act in good faith when
making a determination not to allow
08JNR4
 Federal Register / Vol. 70, No. 109 / Wednesday, June 8, 2005 / Rules and Regulations
telecommuting. Moreover, the
requirement for a written determination
will allow agencies to conduct periodic
reviews as may be necessary to ensure
there is no abuse of this discretion.
Also, issues of contracting officer
rewards are personnel issues that are
beyond the scope of this case and the
general purview of the Councils.
Another commenter recommended
creating a vetting procedure for
determinations to prohibit
telecommuting and to hold contracting
officers’ ‘‘feet to the fire.’’ The Councils
did not adopt this recommendation
because compliance issues are beyond
the scope of this case and are more
appropriately addressed by individual
agency management.
This is not a significant regulatory
action and, therefore, was not subject to
review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
B. Regulatory Flexibility Act
The Department of Defense, the
General Services Administration, and
the National Aeronautics and Space
Administration certify that this final
rule will not have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., because there
is no Governmentwide policy or
practice concerning contractor
employee telecommuting. In addition,
this rule will not be a major change, but
instead a small positive benefit to small
businesses.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the changes to the
FAR do not impose information
collection requirements that require the
approval of the Office of Management
and Budget under 44 U.S.C. 3501, et
seq.
List of Subjects in 48 CFR Parts 7, 11,
13, and 15
Government procurement.
Dated: May 27, 2005.
Julia B. Wise,
Director, Contract Policy Division.
■ Interim Rule Adopted as Final Without
Change
■ Accordingly, the interim rule
amending 48 CFR parts 7, 11, 13, and 15,
which was published in the Federal
Register at 69 FR 59701, October 5, 2004,
is adopted as a final rule without change.
[FR Doc. 05–11181 Filed 6–7–05; 8:45 am]
BILLING CODE 6820–EP–S
VerDate jul<14>2003 17:35 Jun 07, 2005 Jkt 205001
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 2, 4, 12, 37, and 52
[FAC 2005–04; FAR Case 2004–004; Item
III]
RIN 9000–AJ97
Federal Acquisition Regulation;
Incentives for Use of Performance–
Based Contracting for Services
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed to convert the
interim rule published in the Federal
Register at 69 FR 34226, June 18, 2004,
to a final rule with changes to amend
the Federal Acquisition Regulation
(FAR) to implement Sections 1431 and
1433 of the National Defense
Authorization Act for Fiscal Year 2004
(Pub. L. 108–136). Section 1431 enacts
Governmentwide authority to treat
performance–based contracts or task
orders for services as commercial items
if certain conditions are met, and
requires agencies to report on
performance–based contracts or task
orders awarded using this authority.
Section 1433 amends the definition of
commercial item to add specific
performance–based terminology and to
conform to the language added by
Section 1431.
DATE: Effective Date: June 8, 2005.
FOR FURTHER INFORMATION CONTACT: The
FAR Secretariat at (202) 501–4755 for
information pertaining to status or
publication schedules. For clarification
of content, contact Ms. Julia Wise,
Director, Contract Policy Division, at
(202) 208–1168. Please cite FAC 2005–
04, FAR case 2004–004.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends the Federal
Acquisition Regulation. DoD, GSA, and
NASA published an interim rule in the
Federal Register at 69 FR 34226, June
18, 2004, implementing Section 1431
and Section 1433 of the National
Defense Authorization Act for Fiscal
Year 2004 (Pub. L. 108–136). Public
comments were received from three
PO 00000 Frm 00005 Fmt 4701 Sfmt 4700
33657
entities. The Councils reviewed and
resolved the comments. The disposition
of comments, as stated below, requires
one change to the rule, as requested in
comment 7.
1. Comment: Requested clarification
as to whether the term ‘‘performance
assessment’’ should be used in place of
‘‘quality assurance’’ in FAR 37.601(a)(2).
This comment was based on a statement
in the ‘‘Guidebook for Performance–
Based Services Acquisition (PBSA) in
the Department of Defense,’’ December
2000, that, ‘‘[h]ereafter, ‘performance
assessment’ will be used in place of the
term ‘quality assurance’ unless
otherwise noted.’’
Council’s response: This statement
applied only to usage in the Guide and
was not meant as a change in
Governmentwide policy. In fact, a more
recent memo, dated August 19, 2003,
from the Undersecretary of Defense for
Acquisition, Technology and Logistics,
continues to use the term ‘‘quality
assurance,’’ as does the ‘‘Seven Steps
Guide to Procurement Based Services
Acquisition Guide.’’ This comment is
more appropriate for FAR Case 2003–18,
which covers a broader revision of
Performance–Based Services
Acquisition, and will be considered
along with other comments received in
response to that case. FAR Case 2003–
18 was published in the Federal
Register at 69 FR 43712, July 21, 2004;
public comments were due September
20, 2004.
2. Comment: Suggested that the
Councils move the reference to quality
assurance surveillance plans from FAR
37.601(a)(2) and make it a new
subparagraph (5) to emphasize the
importance of quality assurance
surveillance plans.
Council’s response: The Councils did
not adopt this suggestion because the
purpose of this case is to allow agencies
to use FAR Part 12 for noncommercial
services if the services otherwise meet
the existing definition of performance–
based contracting. This comment is
more appropriate for FAR Case 2003–18
and will be considered along with other
comments received in response to that
case.
3. Comment: Recommended revising
FAR 12.102(g)(1) by adding the
additional qualifying factor of ‘‘Includes
a performance work statement.’’
Council’s response: The Councils did
not adopt this suggestion because the
purpose of the case is to allow agencies
to use FAR Part 12 for noncommercial
services if the services otherwise meet
the existing definition of performance–
based contracting, which addresses use
of a work statement that is
performance–based. FAR
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